A incidência da garantia contra evicção em hastas públicas

Abstract

Since the Civil Code of 1916 the use of the guarantee against eviction in public auction is a controversial topic in doctrine and jurisprudence, mainly due to disagreement over the legal nature of the public auction, which, on the grounds of being out of the legal business category, prevented the incidence of the guarantee. Although article 447 of the Civil Code of 2002 provides that the guarantee remains in acquisitions at public auction, the disagreement over the application of the guarantee is still on, even for the Superior Court. Therefore, it intends to present a reinterpretation of the legal nature of the disposal of assets, as well as one of the determining factors for its incidence is the derivate mode by which the property is acquired in this modality , presenting , therefore, the difference between the originary and derivate mode of property acquisition and the legal implications arising therefrom. Moreover, it is necessary to look through a deep study the structure and function of both the public auction as the eviction in the legal system, to then justify the incidence of the guarantee. Given the silence of the legislator, it is necessary to identify the responsible for ensuring the guarantee for the bidder, who will support all the consequences arising from the guarantee.